Nearly half a century after passage of the Age Discrimination in Employment Act (ADEA), the American workplace remains confused as to the line between an innocent joke and potential legal exposure. While jokes involving race at last have found their way to the “hard no” category, the debate over pop culture trends like “Ok Boomer” has made its way to the U.S. Supreme Court. Consequently, both employers and employees could benefit from a review of where the law stands on jokes in the workplace. Spoiler: a “don’t be a jerk policy” goes a long way.
Actor Adam Driver recently appear on Saturday Night Live playing his Star Wars character, Kylo Ren, in yet another “Undercover Boss” spoof. The biggest laugh from the clip comes when Driver’s character is trying, unsuccessfully, to fit in with young interns. Specifically, when introducing himself to the other interns, Driver spurts out “OK BOOMER” (the joke being that the phrase is such a well-known part of internet pop culture that it has become an out of touch boss’s way to try and connect with the kids). While certainly unintentional, the clip is eerily similar to a recent hypothetical posed by Chief Justice Roberts in Babb v. Wilkie, a case considering the causation standard under the Age Discrimination in Employment Act (ADEA).
At issue in Babb was whether federal employees are entitled to the same rights as employees of private companies or state governments, i.e., whether they can successfully bring an ADEA suit if they can show an adverse action would not have been taken against them “but for” the fact that they are more than 40 years old. During oral argument, Justice Roberts asked, “Let’s say in the course of the, you know, weeks-long [hiring] process, you know, [there is] one comment about age,” “the hiring person is younger, [and] says, you know, ‘OK, boomer’ … once to the applicant.”
Following a pause for laughter, the employee’s counsel responded: “I think if the decision makers are sitting around the table and they say, we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and, you know, doesn’t have a lot of computer skills, I think that absolutely would be actionable.” While the Court has not issued its opinion yet, counsel’s response may well be a good predictor of how the Court eventually rules, i.e., an actionable claim of age discrimination requires more than simply a joke about an employee’s generation. This makes sense, as workplace discrimination laws were never meant to be a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Instead, they are in place to put a check on employment actions taken specifically because of a person’s protected characteristic/status. This is an important distinction to keep in mind when discussing generational issues. While comments like “ok boomer” or “millennial snowflake” are certainly pejorative , they should not be confused with racial slurs. In the end, it’s probably not a great idea to try and bring internet meme culture into the office but rude Twitter responses won’t support a lawsuit on their own.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.